NARAINI DEVI Vs. DURGA DEVI

JUDGEMENT

(1.) This is a first appeal by the judgment debtor against whom a suit was filed on October 14, 1955 by the decree-holder to recover an amount of Rs. 8,385/-. Although the debt was secured upon a mortgage of house, but a personal decree in favour of the decree-holder and against the judgment-debtor was passed by the trial Judge on November 12, 1956. Before the date of the decree, the house, now in question, had been attach-ed before judgment on October 22, 1955. On June 8, 1956, the Punjab Relief of Indebtedness Act (Punjab Act No. VII of 1934) was extended to the Union territory of Delhi. Section 35 of this, Act has amended the proviso to Sub-section (1) of Section 60 of the Code of Civil Procedure by adding a Clause (ccc) whereunder one main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him has been exempted from attachment and sale in execution of a decree.

(2.) On the decree-holder having taken out execution of the decree, the judgment- debtor filed objection petition under Section 60(1)(ccc) of the Code of Civil Procedure claiming exemption of the house in question. The executing Court has by its order of March 2, 1957, dismissed that objection petition on the ground that Punjab Act No. VII of 1934 was enforced in the Union Territory of Delhi after the house had been attached, during the pendency of the suit, before judgment, and, as that Act does not operate retrospectively, the house having been already attached is liable to sale under Section 60 of the Code of Civil Procedure. It is against that order that the judgment debtor has come in appeal.

(3.) It is common ground between the learned counsel for the parties that Punjab Act No. VII of 1934, section 35, does not operate retrospectively in so far as it has been made applicable to the Union territory, of Delhi From June 8, 1956. The contention of the learned counsel for the judgment-debtor is that, although there was attachment of the house before judgment but the attachment did not become attachment in execution of the decree within Section 60 of the Code of Civil Procedure until the decree had been passed and the execution application had been made by the decree-holder and that in so far as the learned trial Judge had made reference to Order XXXVIII Rule 11, that merely obviates the procedural formality of going through the manner of attachment all over again, if there has been already an attachment before judgment but that procedural formality does not make the attachment, an attachment in execution of the decree until the decree has been passed and the decree-holder makes an application for execution of the same. The reply on behalf of the decree-holder is simply this, that attachment of the house before judgment was for the benefit of the decree-holder and the property thereby came in the custody of the Court so as to be available for the satisfaction of the decree on the same being passed against the judgment-debtor. Immediately on attachment before judgment, the plaintiff, who afterwards has become the decree-holder, acquired a vested right in the house to have it sold in satisfaction of his decree. Once that vested right came into existence, in view of Order XXXVIII Rule 11, it continued upon the passing of the decree and the Rouse is available for sale in satisfaction of the decree because the attachment took place before Punjab Act No. VII of 1934 was enforced in the Union territory of Delhi. The learned counsel for the decree-holder stresses that a vested right of this type cannot be taken away by a statute unless it is intended to operate retrospectively either expressly or by necessary implication, which admittedly is not the case here. He then says that if the position taken on behalf of the judgment-debtor is sound, it would mean that the house will continue under attachment, though it cannot be put to sale to satisfy the decree of the decree-holder, in perpetuity. This according to him, is a result which could not possibly have been intended by the legislature.